The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-02-27
Hf.fnru afIha Case.


an account vito Hill, Fontsine & Co.,
in the name of the son, R. F. Abbey.
This account WIS continued until the
death Of Richard Abbey, the father,
who died testate, in 1883. By his will
r. f. Abbey WIS made executor. A.
the date of his death ths account of
Hill, Fontsine & Co. amounted to the
sum OF $2l, 900. By the terms OF the
will the executor WAS authorized to
pay oil of bis debts, which we're
charged upon the estate. Hill, Fon-
tame & Co. failed to probate their
claim within one year sg lost Richard
Abbey's estate ss provided by the
code Of Mississippi. The Abbeys were
cotton planters aod as such shipped to
Hill, FOn'aine & Co. their crops Of
cotton, which were credited, " hen sold,
on said accoant. In this way the &C.
count was continued from the begin
nipg TO old man Abb9y's death. Com
plainsnts, Hill, Fontaine 4 Co., Fl cd
their bill in The Chaucery Court OF
Tunica county, Mise, in which they
claim,
First.-That the account 80 opened
was Joint account, for the payment
of which both r chard Abbey, de-
ceased, and his sald son, R. F. Abbey,
were jointly lab g.
S;ond That their claim was q mu.
tusl account, snd the last item being
within the thr5e years of Limitation,
same was rot bsrr, d.
Thud.-Tnat the will, by charging
the estate Of the testator with ths
payment OF al debts, created trust
and bound the entire estate of Rich
ard Abbey, decsaled, real and YER
soma, for the payment OF same, against
which trust no Limitation couid run.
craft Il Cooper for defendants, Hill & viii
kerson for c0mplaihants, B. +. Powell for
deVisees.
DECISION CT THE SUPREME COURT.
Arnold, JrdGe, delivered the opin-
ion of the Court. The account of
Hill, Fontaine & %. was not barred
by the three years statute OF limita-
tons. Their account had never been
settled, there were mutual dealings
and reciprocal demands between the
parties within three years, and the
items on one side of the account might
have been Offset against the items on
the other pro tanio. Ii was a mutual
and open current account within the
meaning of section 267l of the Code,
which provides that sin all actions
brought to recover the balance due
upon a mutual and open current &C
count, the cause of action shall be
deemed to have accrued at the time of
the true dale of the last item proved
in such account" Abbey vs. Owens,
81 Miss, $40; Wood on Limitations,
section 278.
1t is claimed that the cotton deliv-
cred to Hill, Foniaine & Co., from
time to time, were so many payments
on the account, and that the Abbeys
bad no demand against them for it.
This is not true, for the reason that
there was no agreement that the cot.
ton should be accepted as payments
on the account, but it was to be sold
by Hill, Fontaine & Co. and the pro-
ceeds accounted for, and the Abbeys
might well have maintained suit for
the value Of the cotton il it had not
been accounted for.
Under the consrUction placed on Sec
ton POPS OF TIE Code by m 'jority OF
the court in Ales va. Plant, 81 Miss,
259, the claim of Hill, Fontsine & Co.
was barred as to the real estate of VIII Oh
Richard Abby died seized and pos
sessed, by re son of the failure to reg
lister the claim as the law required,
unless the provisions of the will pre-.
vented thin result. The will expressly
charges the estate Of the testator, beth
real and personal, with the payment
Of his 6ebts, and invests his executor
with power ,and discretion to eel the
whole or any part OF his estate for the
purpose of paying bis debts. Chsrg-
ing his bebts upon his real estate in
this manner amounts to the same
thing in equity as if the teststor had
devised it expressly in trust to pay his
debts. Hill on trustees, 527.
Here, where The estate of descent,
real and personal, is liable for the
payment oil his debts, trust on real
estate for that purpose will not be i'm.
piled, or derived from ambiguous or
uncertain teftamentary provisions.
Steele Va. S eele, "a Ala. 43S.
But section 1884 Of the code pro-
vides, that whenever any last will
and testament shall empower and
direct the executor as to the sale of
property, the payment of debts and
legaeies, and the management of the
estate, the directions of the will shall
be followed by the executor and no
provisions herein contained shall 80
operate as 10 require the executor to
pursue different course from that
prescribed in the will if it be lawful"
and If testator chooses to create such
trust on his real estate, and his
creditors do not object, it is not I'M
lawful for him TO do 30.
In our view this is what Richard
Abbey intended and declared by his
will, and his estate wss thereby taken
out OF the ordinary course of admins.
tration, and no statute Of limitations
operated against his creditors, except
the ten year statute Of section 2696 of
the Code, which spplies in case of the
existence OF trust not cognizAble by
the courts OF common law, etc.
There may be found statements to
the contrary, bat in the absence Of a
statute like the one last referred to
above, the doctrine is well settled that
q general devise or charge by will for
the payment OF debts out Of real es-
tate will prevent the statute OF limita-
tons from running against debts that
are not barred at the death Of the tes-
tstor. Hill on trustees, SIG, Sal /;
Steele ". Steele, "a Ala, 438; Temple
ton We. Tompkins, As Miss, 424.
The Chancellor erred in holding that
the real estateof which Richard Abbey
died seized and possessed was not
liable for the payment of his debts,
and in ordering An account to be taken
and stated on that basis. In other
respects the decree 10 right.
For the errors indicated the decree
Is reversed and The cause remanded
for further proceedings in accordance
9TH fhta onininu